Requirements for availability of patent deposits is determined by the rules in the country in which the patent application is filed. Generally, ATCC is required to make patent materials available only after the issuance of a pertinent patent. Prior to that time, the deposit need only be made available to a requester if 1) the Commissioner of the USPTO (in accordance with 35 USC 122) issues a decision to release such deposit; 2) the patent office of another country issues such a decision to release the deposit to a particular requester; or 3) the original depositor requests in writing that the deposit be released to a particular requester.
Although in the United States availability of the deposited material is required only after the issuance of a patent, in Europe availability is made possible with European Patent Office (EPO) approval upon publication of the patent application. The requester must agree to use the biological material for experimental purposes only, and not to make the material available to a third party before the application is refused or withdrawn or the patent expires. There is also an option during the European patent filing process by which an inventor may choose, for a certain period of time, to have the biological material made available only through an expert.
It is the responsibility of the depositor to inform ATCC of the issuance of pertinent patents. ATCC urges depositors to diligently inform us when the patent issues and which deposits to release.